Citation Nr: 0004235 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 95-38 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the transitional cell carcinoma of the bladder, claimed as secondary to in- service exposure to Agent Orange and asbestos, on an accrued benefits basis. 2. Entitlement to service connection for the cause of the veteran's death, to include eligibility for Dependents Educational Assistance under 38 U.S.C., Chapter 35. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The appellant is the widow of the veteran, who died on May 15, 1995. The veteran served on active duty from June 1966 to June 1968. His decorations include the National Defense Service Medal. This appeal arises before the Board of Veterans' Appeals (Board) from an August 1995 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), in which service connection was denied for bladder cancer, claimed as a result of exposure to herbicides. By that same rating action, service connection was also denied for the cause of the veteran's death and it was determined that eligibility for Dependents' Educational Assistance under 38 U.S.C., Chapter 35, was not established. In October 1995, the RO denied service connection for transitional cell carcinoma of the bladder, metastatic, as a result of asbestos exposure and exposure to Agent Orange (herbicides). FINDINGS OF FACT 1. The record does not include evidence of an etiological link, or nexus, between transitional cell carcinoma of the bladder and the veteran's period of active service, to include claimed exposure to Agent Orange and asbestos therein. 2. The record does not include evidence of an etiological link, or nexus, between the veteran's death from transitional cell carcinoma of the bladder, lymph nodes, and liver, and his period of active military service, to include claimed exposure to asbestos and Agent Orange therein. CONCLUSIONS OF LAW 1. The claim for service connection for transitional cell carcinoma of the bladder, claimed as secondary to exposure to asbestos and to Agent Orange, on an accrued benefits basis, is not well grounded. 38 U.S.C.A. 1110, 1131, 5107(a), 5121 (West 1991 & Supp. 1998); 38 C.F.R. 3.303 (1999). 2. The claim for service connection for the cause of the veteran's death, to include to include eligibility for Dependents Educational Assistance under 38 U.S.C., Chapter 35, is not well grounded. 38 U.S.C.A. 1110, 1131, 1318, 5107(a), 5121 (West 1991 & Supp. 1998); 38 C.F.R. 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION According to 38 U.S.C.A. § 1110, 1131 (West 1991 & Supp. 1999), service connection may be granted for a disability if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). For certain disabilities, including nephritis and cardiovascular-renal disease, service connection may be warranted if the disability is manifested to a compensable degree within one year following the veteran's discharge from active duty, based on application of the provisions pertaining to service connection on a presumptive basis which are found in 38 C.F.R. § 3.309 (1999). A veteran's death will be considered service-connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a)(1999); Harvey v. Brown, 6 Vet.App. 390, 393 (1994). A service- connected disability is the principal cause of death when that disability, "singly or jointly or with some other condition, was the immediately or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b) (1999); Ashley v. Brown, 6 Vet.App. 52, 57 (1993). To be a contributory cause of death, the disability must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c); Schoonover v. Derwinski, 3 Vet.App. 166, 168-69 (1992). When considering whether a condition was a contributory cause of death, "it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection." 38 C.F.R. § 3.312(c); Ventigan v.. Brown, 9 Vet.App. 34, 36 (1996). According to 38 C.F.R. § 3.309(e) (1999), if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; Non-Hodgkin's lymphoma; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft- tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). According to 38 C.F.R. § 3.307(a)(6) (1999), the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at 38 C.F.R. § 3.309(e) (1994) shall be service connected if they manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. The regulations pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, now provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6) (1998). Background Service medical records are negative for treatment of bladder or kidney problems or any form of urogenital cancer. On separation examination in April 1968, the veteran was clinically evaluated as normal with regard to the genito- urinary system and all other anatomical systems. Service personnel records show that the veteran underwent basic training at Ft. Polk, Louisiana, and advanced individual training at Fort Sam Houston, Texas. While stationed at Arlington Heights, Illinois, his principal military duties included medical corpsman and clerk/typist. A VA hospital summary, dated January 1989, shows a diagnosis of transitional cell carcinoma of the bladder, grade 2-3. It was noted that transitional cell carcinoma was originally diagnosed in October 1987, when the veteran presented to his urologist with a complaint of left flank pain. Due to the invasive nature of the carcinoma, it was planned for him to undergo chemotherapy and eventually, a total cystectomy. In February 1989, entitlement to nonservice-connected pension was granted on the basis of 100 percent disability due to transitional cell carcinoma of the bladder. A January 1992 VA hospital summary shows diagnoses of chronic pyelonephritic left kidney; chronic urethritis; redundant left ileal conduit; and status post cystoprostatectomy ileal loop urinary diversion for transitional cell carcinoma of the bladder Grade 2-3 in June 1989. Additional VA treatment records, dated in 1993 and 1994, show that the veteran was followed for kidney and renal dysfunction. In December 1994, the veteran submitted a claim for service connection for a urinary condition and cancer, based on exposure to Agent Orange and asbestos. In a subsequent December 1994 statement, the veteran indicated his belief that he was exposed to Agent Orange while stationed at Ft. Polk, Louisiana, in 1966. The veteran stated that prior to his arrival, Agent Orange was used to clear areas. This claim had not yet been adjudicated at the time of the veteran's death. A VA discharge summary shows that in December 1994, the veteran was hospitalized for treatment of the following diagnoses: obstruction of the ileal loops secondary to chronic inflammatory mass, pathology of which came back as a squamoid metaplasia; chronic renal failure; solitary kidney; and seborrheic dermatitis. While hospitalized, he underwent a percutaneous nephrostomy and a looposcopy and excision of a lesion in the mid-ileal loop. VA hospital and treatment records show that in January 1995, the veteran underwent a cystoprostatectomy and ileal loop diversion, with left nephrectomy and revision of the ileal loop. A VA discharge summary shows that the veteran was hospitalized between March 20, 1995, and April 1, 1995. He was admitted for percutaneous nephrostomy in order to biopsy the entire ureter, as well as for ileoscopy and biopsy of the ileal loop. It was noted that biopsy had revealed findings of in situ carcinoma of the ureteral ileal anastomosis. During the hospital course, he underwent a biopsy of lymph nodes of the neck which came back with a diagnosis of transitional cell carcinoma of the bladder, metastatic. The veteran declined chemotherapy locally as he wanted to continue chemotherapy nearer to his home. The following diagnoses were shown on discharge: 1. metastatic transitional cell carcinoma; 2. degenerative joint disease; and 3. chronic renal failure. VA treatment records, dated in May 1995, show that the veteran was receiving treatment for ureteral obstruction and ureteral cutaneous drainage, status post cystectomy and ileal conduit. A medical record, dated April 15, 1995, indicates that the veteran was now terminal as a result of metastatic transitional cell carcinoma of the bladder to the lymph nodes and liver. The death certificate shows that the veteran died at his residence on May 15, 1995. The immediate cause of death (final disease or condition resulting in death) is listed as terminal cancer. In June 1995, the appellant submitted a claim for service connection for the cause of her husband's death from cancer as a result of exposure to defoliants and asbestos, to include a claim for all accrued benefits to which she was entitled. In a September 1995 statement, the appellant indicated that her husband served his basic training at Fort Polk, Louisiana. She stated that this base had not been used for years and was thick with vegetation, which was cleared with Agent Orange, and the men in her husband's company were immediately sent in to set up and begin basic training. She also indicated that her husband was stationed in Arlington Heights, Illinois, after basic training, at the Nike Missile Base, where he worked and lived in asbestos huts which are no longer in use. In developing the veteran's claim on appeal, the RO contacted the Commander of the USA Medical Command at Ft. Sam Houston, Texas, in order to request verification of the veteran's exposure to asbestos during his service at the U.S. Army Dispensary in Arlington Heights, Illinois, from 1966 to 1968. The RO eventually obtained a response from the Department of the Army, U.S. Army Center for Health Promotion and Preventive Medicine (USACHPPM). USACHPPM could not locate any atmospheric asbestos fiber data for buildings occupied by the veteran at the former Arlington Heights Nike Missile Site, which precluded a definitive exposure assessment for that site. USACHPPM did undertake analysis of various other documents. It was noted that in various buildings on Fort Sheridan, the location of the veteran's parent medical unit for his medica detachment at the Arlington Heights' site, the presence of building materials containing asbestos was determined, and these materials included sprayed or troweled surfacing material, thermal insulation, and floor tiles. In the early 1990's, friable surfacing materials and thermal insulation were found in conditions ranging from good to significantly damaged and all floor tiles examined at this time were in a brittle state. Based on the findings of the Corps of Engineers, it was logical to assume that the Arlington Heights' site (which was completed in 1959) was built with materials containing asbestos. In summary, USACHPPM confirmed that the location of the Arlington Heights Nike Missile site and those buildings on this site probably were constructed with building materials containing asbestos, however, USACHPPM was unable to determine whether there were any exposures or activities at the site which could have exceeded the permissible asbestos exposure level. Lastly, asbestos exposure that exceeded the permissible level would not have been expected unless the individual's occupation required working directly with material containing friable asbestos. It was noted that asbestos within building materials does not mean that there was exposure to asbestos fibers within the building, as asbestos fibers would only be released in areas where material containing friable (easily crumbled or pulverized) asbestos is present. By letter dated November 1998, the appellant was informed that the wrong records were received in a development request from the office of a Dr. Colon-Otera, and that she would need to complete and return the enclosed authorization forms in order to again request the late veteran's medical records. The record does not indicate that a response was received from the appellant prior to certification of the claims on appeal in July 1999. Analysis The threshold question that must be resolved with regard to each claim is whether the claim is well grounded, that is, that each claim is plausible or capable of substantiation. If a well grounded claim has not been presented, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), and Murphy v. Derwinski, 1 Vet.App. 78 (1990). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability as provided by a medical diagnosis, (2) evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). I. Service connection for transitional cell carcinoma of the bladder, claimed as secondary to Agent Orange exposure and asbestos exposure, on an accrued benefits basis. Having reviewed the evidence of record, the Board has concluded that a well grounded claim for service connection for transitional cell carcinoma of the bladder, claimed as secondary to exposure to Agent Orange and asbestos, has not been presented. Service medical records are negative for treatment of bladder problems or any type of urogenital cancer or disease. The veteran was discharged from active duty in 1968, and there is no record of treatment, complaints, or diagnosis of carcinoma of the bladder until 1987, or more than 15 years thereafter. In addition, none of the available medical reports suggests that there is an etiological relationship between the diagnosis of bladder cancer and the veteran's period of active service, to include exposure to either Agent Orange or asbestos therein. In addition, the record does not include a medical opinion relating the veteran's death from terminal cancer to the alleged in-service exposure to Agent Orange and asbestos. Parenthetically, the Board notes that while treatment records show that the veteran was followed for chronic renal failure and kidney dysfunction during the 1990's, in addition to transitional cell carcinoma, there is no evidence of the manifestation of renal disease or nephritis within one year following the veteran's discharge from active duty, such that service connection would be warranted for disabilities of this type under the provisions of 38 C.F.R. § 3.309. With regard to asbestos exposure, it has been confirmed that the buildings at Arlington Heights, Illinois (where the veteran was stationed in the 1960's) were constructed of materials containing asbestos. However, asbestos exposure that exceeded the permissible level would not have been expected unless the veteran's occupation required working directly with material containing friable asbestos. The veteran was employed primarily as a medical corpsman and as a clerk during his Arlington Heights duty, and there is no evidence that he worked directly with asbestos during that time. Furthermore, the veteran is not entitled to a presumption of service connection for disabilities claimed as a result of Agent Orange exposure. Specifically, the record indicates that during the veteran's entire period of active duty, he was stationed in the United States and did not serve in Vietnam. The provisions of 38 C.F.R. § 3.309(e) are applicable only if the veteran was exposed to an herbicide agent during active military service, and 38 C.F.R. § 3.307(a)(6) defines the term herbicide agent as "a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era." As the veteran did not serve in Vietnam during the Vietnam era, he is not entitled to a presumption of service- incurrence for claimed disabilities under the provisions of 38 C.F.R. § 3.309. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub.L.No. 98-542, 98 Stat. 2715, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). However, the record does not include evidence which demonstrates that the veteran was in fact exposed to Agent Orange at Fort Polk during his stateside service, as has been alleged; and as noted, there is no medical evidence suggestive of an etiological link, or nexus, between the diagnosis of transitional cell carcinoma of the bladder and exposure to Agent Orange. For the reasons stated above, the Board has concluded that the record does not indicate evidence of an etiological link, or nexus, between transitional cell carcinoma of the bladder and the veteran's period of active service, to include exposure to Agent Orange or asbestos therein. As such, the requirements for a well grounded claim have not been satisfied, and the claim for service connection for transitional cell carcinoma of the bladder, claimed on an accrued benefits basis, must be denied. II. Service connection for the cause of the veteran's death, to include eligibility for Dependents Educational Assistance under 38 U.S.C., Chapter 35. As noted, in a claim for DIC benefits, service connection for the cause of the veteran's death may be granted if a disorder incurred in or aggravated by service caused, hastened, or contributed substantially or materially toward death. 38 U.S.C.A. § 1310(b) (West 1991); 38 C.F.R. § 3.312 (1999). In a cause of death case, the determinative issue with regard to well-groundedness is whether the cause of the veteran's death can be linked to his period of active service. Because this issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Caluza v. Brown, 7 Vet. App. 498, 504 (1995). Having reviewed the record, the Board has concluded that the appellant has failed to submit evidence of a well grounded claim for service connection for the cause of the veteran's death. On the death certificate, the immediate cause of death is listed as terminal cancer, and medical records from the months prior to death indicate that he had been diagnosed with transitional cell carcinoma of the bladder to the lymph nodes and liver. As noted in the previous section, all systems were clinically evaluated as normal at the time of the veteran's separation from active duty in 1968 and there is no evidence of in-service treatment for bladder problems or any form of cancer. Post-service treatment for bladder cancer is initially shown in 1987, or more than 15 years following the veteran's discharge from active duty, and there is no evidence of ongoing and continuing treatment for cancer of any type prior to that time. Finally, the record is devoid of medical evidence, to include a medical opinion, which suggests that transitional cell carcinoma, which led to the veteran's death, was etiologically related to the period of active service or to exposure to either Agent Orange or asbestos therein. The Board also notes that the appellant has alleged that the veteran developed transitional cell carcinoma as a result of in-service exposure to Agent Orange and asbestos. However, there is no evidence verifying in-service exposure to Agent Orange and the record shows that the veteran's entire period of active duty was served stateside, and he did not serve on active duty in Vietnam during the Vietnam era which is required for application of the provisions pertaining to presumptive service connection which are found in 38 C.F.R. § 3.309 (1999). Furthermore, during his active duty at Arlington Heights the veteran was employed as a medical corpsman and as a clerk, and there is no evidence that these duties resulted in exposure to friable asbestos. For these reasons, the Board has concluded that the appellant has failed to provide any evidence, save her own opinion, of an etiological relationship between the veteran's death from terminal cancer (transitional cell carcinoma) and his period of active military service, to include exposure to Agent Orange and asbestos therein. As a layman, the appellant is not competent to offer opinions on medical causation and, moreover, the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. Grottveitt v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, the Board finds that the requirements for a well grounded claim for service connection for the cause of the veteran's death have not been met, and the appellant's claim must be denied. ORDER As a well grounded claim has not been presented, service connection is denied for transitional cell carcinoma of the bladder, claimed as secondary to in-service exposure to Agent Orange and asbestos, on an accrued benefits basis. As a well grounded claim has not been presented, service connection is denied for the cause of the veteran's death, to include to include eligibility for Dependents Educational Assistance under 38 U.S.C., Chapter 35. C. P. RUSSELL Member, Board of Veterans' Appeals